If you have recently signed a family member (or a friend, or yourself) into a nursing home or other care facility, you probably have been presented with an agreement to submit all disputes to arbitration. Such provisions are very popular among the facilities themselves, though most individuals who sign them may not understand or appreciate what they are agreeing to. A recent Arizona appellate decision calls the scope of those provisions into question.

Martha Anderson (not her real name) was admitted to a Phoenix-area nursing home four different times in 2011, as her condition worsened and improved several times. After each of the first two admissions, her daughter Mary signed documents on Martha’s behalf. The documents included an agreement, on behalf of her mother, to submit any disputes that might arise between Martha and the nursing home to the arbitration process. For the third and fourth admissions, no one asked her to sign the arbitration agreements again.

Martha’s condition worsened, and she died in the nursing home in 2012. Mary initiated a probate proceeding and then sued the nursing facility, alleging both that the facility’s care led to her mother’s death and that the care amounted to abuse or neglect of a vulnerable adult. The nursing home moved to dismiss the lawsuits, pointing out that Mary had agreed to arbitration instead of a court trial.

The judge hearing Mary’s lawsuit agreed, and dismissed her case. That meant that Mary would have to submit to binding arbitration. Instead, she appealed the dismissal.

The Arizona Court of Appeals agreed with Mary, at least in part. The appellate court determined that the arbitration agreement was not enforceable as to either of the primary portions of Mary’s lawsuit. First, the judges noted that Mary signed the agreement on her mother’s behalf, not her own — and the wrongful death claim she had brought against the nursing home belonged not to her mother (or her mother’s estate) but to the surviving family members. If Martha had signed the agreement, she could not force her children to submit their claims to arbitration, and so Mary could not bind them when signing on her mother’s behalf.

In the particular facts of Martha’s nursing home admissions, the appellate judges also declined to apply the arbitration agreement to the remaining abuse/neglect claims. Because no new arbitration agreement was signed for the third and fourth admissions, Mary had not agreed to arbitrate her mother’s claims arising during those stays.

Mary had also argued that the arbitration agreements were unenforceable because they were simply unconscionable. The appellate judges rejected that argument, finding that she had not shown that the method of securing her signature, or the cost of arbitration would be an undue burden on her. Of particular importance in this finding: both of the agreements that Mary signed clearly indicated that they were voluntary, that her signature was optional, and that her mother’s admission and care would not be affected if she did not sign the agreements. Estate of Aspeitia v. Life Care Centers, Inc., October 21, 2014.

Why would someone in Mary’s position voluntarily sign an agreement to submit any future claims to binding arbitration? It is not clear, as there are few benefits accruing to the patient in such a situation. Benefits to the facility are much more obvious: the arbitration process is much less expensive, less likely to result in significant awards, and less prone to the strong reactions that jurors sometimes evidence.

This is not the first time Arizona courts have addressed arbitration agreements in nursing home settings. In 2013 we reported on another case, in which the Arizona Court of Appeals ruled that the arbitration agreement was unconscionable. Why was that agreement overturned, while Martha’s agreement was voided only because it was not signed for her last two admissions? Because in the 2013 case, the evidence was clear that the patient (who was still living and filing the lawsuit himself) would have to come up with over $20,000 just to initiate the arbitration proceeding.

What message does Martha’s case have for others? First, it needs to be clear that it is limited to Arizona — other states have addressed similar agreements to submit to binding arbitration, and they have been approved or rejected based on both similar and different theories. State law really does matter.

Perhaps a better question to consider, though, is what you might do when admitting a loved one to a nursing facility. Should you sign an arbitration agreement? What happens if you do not?

First, the arbitration provisions will probably be in a separate document or separately spelled out in a combined agreement (requiring your signature on that section). The arbitration provisions are likely to have language like Mary confronted, too — telling you that your signature on that section (or that separate form) is optional. Don’t sign that provision and you will not be bound by it. We think you ought to go further, in fact. Cross out the arbitration portion. Write “no” next to it. Make it clear that you didn’t just forget to sign, but that you specifically refuse the offer of binding arbitration.

Should you have a lawyer review your nursing home contract before you sign? Yes. Here’s an important benefit: it buys you time, to consider the significance and effect of your signature. Tell the facility that you’ll get the agreement back to them as quickly as you can get with your lawyer and review it.

What you really want, of course, is not to have a claim against the nursing facility at all. In other words, you want your family member’s care to be excellent, and to have no adverse outcome. To that end, keep close tabs on the care at the facility. Challenge staffing levels, care decisions, diagnoses and accommodations made by the facility. You want the caretakers (and, in fact, the facility itself) to view you as a concerned advocate, and not an angry and dissatisfied irritant — but you want to maintain your level of concern and oversight.

Good luck. It is really difficult to have a family member in the nursing facility. It is more difficult for them; help them as ably as you can.